Scott Herden and Tearoc Pty Ltd [2007] NSWIRComm 1051

Scott Herden and Tearoc Pty Ltd [2007] NSWIRComm 1051

Because the Local Court finding, not disturbed on appeal, established that the applicant had admitted guilt to the theft before bringing the unfair dismissal application, and no further evidence was put before the Commission to reject that finding, the unfair dismissal application was manifestly groundless and therefore frivolous or vexatious. The applicant also unreasonably failed to settle because he knew of his own guilt when settlement offers were made. The respondent had warned the applicant that it would seek indemnity costs for preparation if he did not withdraw by 24 August 2005, so indemnity costs were justified but only for preparation costs incurred on or after 25 August 2005.

Jurisdiction
Australia
Judgment Date
05 October 2007
Procedural Posture
Unfair Dismissal Application Pursuant to Section 84 of the Industrial Relations Act 1996 / Decision on Respondent's Costs Application After Applicant Sought to Discontinue the Unfair Dismissal Application
Outcome
Respondent's costs application granted in part; indemnity costs awarded on a limited basis.
Legal Topics
['unfair Dismissal' 'frivolous or Vexatious Application' 'unreasonable Failure to Settle' 'indemnity Costs' 'summary Dismissal for Alleged Theft']
['industrial Relations' 'employment Law' 'costs'] ['unfair Dismissal' 'frivolous or Vexatious Application' 'unreasonable Failure to Settle' 'indemnity Costs' 'summary Dismissal for Alleged Theft']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Unfair Dismissal Application Pursuant to Section 84 of the Industrial Relations Act 1996 / Decision on Respondent's Costs Application After Applicant Sought to Discontinue the Unfair Dismissal Application

Legal Issues

  1. 1 ['Whether the unfair dismissal application was frivolous or vexatious within s 181(2)(c) of the Industrial Relations Act 1996.' 'Whether the applicant unreasonably failed to agree to a settlement of the unfair dismissal claim.' 'Whether the Commission should exercise its discretion to award costs, and whether costs should be on an indemnity basis.' "Whether costs should be limited to costs incurred in preparation of the respondent's case on or after 25 August 2005."]

Ratio Decidendi

Because the Local Court finding, not disturbed on appeal, established that the applicant had admitted guilt to the theft before bringing the unfair dismissal application, and no further evidence was put before the Commission to reject that finding, the unfair dismissal application was manifestly groundless and therefore frivolous or vexatious. The applicant also unreasonably failed to settle because he knew of his own guilt when settlement offers were made. The respondent had warned the applicant that it would seek indemnity costs for preparation if he did not withdraw by 24 August 2005, so indemnity costs were justified but only for preparation costs incurred on or after 25 August 2005.

Court Disposition

Respondent's costs application granted in part; indemnity costs awarded on a limited basis.

Orders

  • ['The Applicant (Mr Scott Herden) pay the costs of the Respondent (Tearoc Pty Limited) on an indemnity basis, as agreed or assessed.' 'The order for costs on an indemnity basis (as agreed or assessed) is limited to the costs incurred by the Respondent in the preparation of its case, and only for such preparation...